Since the complainant company is permitted to change
its authorized representative, I am of the view that there is
no bar under the law to record the evidence of Aditya
Dhanania as P. W. 2 though he represented the
complainant company at the initial stage of the proceedings
and was subsequently substituted by Sumit Seksaria. The
complainant company has the right to adduce further
evidence in support of the case made out by the
complainant after adducing evidence of the authorized
representative of the complainant company. That apart, the
defence will not be prejudiced for recording evidence of
Aditya Dhanania as P. W. 2, because the defence will get
ample opportunity to cross-examine the witness in order to
test the veracity of the statement given by the witness and
also to demolish the evidence given by the witness. The
logical inference of my above observation is that the
impugned order passed by learned Magistrate is liable to be
set aside.
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
The Hon’ble Mr. Justice R.K. Bag
CRR 1417 of 2014
M/s Jilco Securities Limited
-Versus
Dinesh
Navinchand Desai
Judgment On: 21.07.2014
Citation;2015(3) crimes 622 Cal
This criminal revision is preferred by the petitioner
challenging the order dated 07.04.2014 passed by the Learned
Metropolitan Magistrate, 15th Court, Calcutta in Case No.
C/2990 of 2001 under Section 138 of the Negotiable
Instruments Act, 1881, by which learned Magistrate refused to
accept the evidence of one particular witness on behalf of the
complainant. 2. It appears from the materials on record that the
petitioner being complainant started criminal proceeding
against the opposite party under Section 138 of the Negotiable
Instruments Act, 1881 before the court of learned Magistrate
on 21.06.2001. This petition of complaint was filed by one Sri
Aditya Dhanania as the authorized representative of the
complainant company before the court of learned Magistrate
and he was examined under Section 200 of the Code of
Criminal Procedure for the purpose of issuing process against
the accused person. Subsequently on 30.04.2007 learned
Magistrate granted permission to one Sumit Seksaria to
represent the complainant company by stepping into the shoes
of Aditya Dhanania. Sumit Seksaria filed the affidavit as the
complainant before the court of learned Magistrate under
Section 145 of the Negotiable Instruments Act, 1881 and he
was cross –examined by the defence. Thereafter, one
application was filed on behalf of the complainant before the
court of learned Magistrate for acceptance of evidence of Aditya
Dhanania as P. W. 2 by way of affidavit under Section 145 of
the Negotiable Instruments Act and the same was refused by
learned Magistrate on the ground that P. W. 1 Sumit Seksaria
being substituted in place of Aditya Dhanania as the
authorized representative of the complainant company has
already adduced evidence and as such the evidence of Aditya
Dhanania cannot be accepted by the court.
3. With the above factual matrix, Mr. Ayan Bhattacharjee,
learned counsel appearing on behalf of the petitioner submits that there is no bar under the law to adduce any evidence in
support of the evidence of the complainant to establish the
case made out by the complainant in the petition of complaint.
Mr. Bhattacharjee contends that Aditya Dhanania was
examined as authorized representative of the complainant
company under Section 200 of the Code of Criminal Procedure,
but subsequently Sumit Seksaria stepped into the shoes of
Aditya Dhanania as authorized representative of the
complainant company and as such Sumit Seksaria gave
evidence as P. W. 1 by way of affidavit under Section 145 of the
Negotiable Instruments Act, but Aditya Dhanania cannot be
debarred from adducing evidence as P. W. 2 in support of the
case made out by complainant. Mr. Bhattacharjee has relied
on the decision of “SHANKAR FINANCE AND INVESTMENTS V.
STATE OF ANDHRA PRADESH AND OTHERS” reported in
(2008) 8 Supreme Court Cases 536 wherein it is laid down by
the Apex Court in Paragraph 16 as follows : -
“In regard to business transaction of companies,
partnerships or proprietary concerns, many a time the
authorised agent or attorney holder may be the only
person having personal knowledge of the particular
transaction; and if the authorised agent or attorney
holder has signed the complaint, it will be absurd to
say that he should not be examined under Section 200
of the Code, and only the secretary of the company or
the partner of the firm or the proprietor of a concern,
who did not have personal knowledge of the transaction, should be examined. Of course, where the
cheque is drawn in the name of the proprietor of a
proprietary concern, but an employee of such concern
(who is not an attorney holder) has knowledge of the
transaction, the payee as complainant and the
employee who has knowledge of the transaction, may
both have to be examined.”
By relying on the above decision Mr. Bhattacharjee submits
that Aditya Dhanania who was initially examined under
Section 200 of the Code of Criminal Procedure can very well
give evidence as P. W. 2 before the trial court in support of the
case made out by the complainant and the defence will not be
prejudiced thereby, as the defence will get ample opportunity
to cross-examine this witness.
4. Mr. Shekhar Kumar Basu, learned senior counsel
appearing on behalf of the opposite party contends that
learned Magistrate has acted in excess of jurisdiction conferred
on him by law by granting permission to Sumit Seksaria to
step into the shoes of Aditya Dhanania as the authorized
representative of the complainant company without any
document of authorization or power of attorney and as such
the evidence of Sumit Seksaria recorded by learned Magistrate
as P. W. 1 is in violation of the direction given by the Supreme
Court of India in “A. C. Narayanan V. State of Maharashtra &
Anr.” reported in JT 2013 (12) SC 524. In this case the
Supreme Court has laid down that filing of petition of
complaint under Section 138 of the Negotiable Instruments Act through power of attorney is perfectly legal and valid.
However, an explicit assertion as to the knowledge of the power
of attorney holder about the transaction in question must be
specified in the complaint.
5. The proposition of law laid down by the Apex Court in
the Case of “A. C. Narayanan V. State of Maharashtra and
Another” relates to issuance of process under Sections
138/142 of the Negotiable Instruments Act, 1881 by the holder
of power of attorney of the complainant company. The issue to
be decided in the present case does not relate to issuance of
initial process against the accused persons under Sections 138
read with 142 of the Negotiable Instruments Act, 1881. In the
present case the issue to be decided by this court is whether
learned Magistrate acted illegally and in excess of jurisdiction
conferred on him by law by refusing to accept the evidence of
Aditya Dhanania as P. W. 2 after recording evidence of Sumit
Seksaria as P. W. 1 as authorized representative of the
complainant company. Naturally, the facts of the present case
are clearly distinguishable from the facts of the case of “A. C.
Narayanan V. State of Maharashtra & Anr.” reported in JT
2013 (12) SC 524 and as such the ratio of the said decision will
not be applicable in the facts of the present case.
6. Mr. Basu, has also relied on the decision of “Indian
Bank Association and Others V. Union of India and Others”
reported in JT 2014 (6) SC 592, wherein the Supreme Court
of India has given the direction for expeditious disposal of the proceeding under Section 138 of the Negotiable
Instruments Act in paragraph 21, which as follows:
i) Magistrate/Judicial Magistrate (MM/JM), on
the day when the complaint under Section
138 of the Act is presented, shall scrutinize
the complaint and, if the complaint is
accompanied by the affidavit, and the affidavit
and the documents, if any, are found to be in
order, take cognizance and direct issuance of
summons.
ii) MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and
sent by post as well as by e-mail address got
from the complainant. Court, in appropriate
cases, may take the assistance of the police or
the nearby Court to serve notice to the
accused. For notice of appearance, a short
date be fixed. If the summons is received
back un-served, immediate follow up action
be taken.
iii) Court may indicate in the summon that if the
accused makes an application for
compounding of offences at the first hearing
of the cases and, if such an application is
made, Court may pass appropriate orders at
the earliest. iv) Court should direct the accused, when he
appears to furnish a bail bond, to ensure his
appearance during trial and ask him to take
notice under Section 251 Cr. P. C. to enable
him to enter his plea of defence and fix the
case for defence evidence, unless an
application is made by the accused under
Section 145 (2) for recalling a witness for
cross-examination.
v) The Court concerned must ensure that
examination-in-chief, cross-examination and
re-examination of the complainant must be
conducted within three months of assigning
the case. The Court has option of accepting
affidavits of the witnesses, instead of
examining them in Court. Witnesses to the
complaint and accused must be available for
cross-examination as and when there is
direction to this effect by the Court.”
7. Mr. Basu has relied on the above decision of the Apex
Court in support of the contention that the instant
proceeding under Section 138 of the Negotiable Instruments
Act pending before the Court of learned Magistrate for more
than 13 years is liable to be quashed by invoking inherent
power of this Court under Section 482 of the Code of
Criminal Procedure, 1973. Without making any scrutiny of
the orders passed by learned Magistrate and without formation of any opinion why this inordinate delay took
place in the disposal of this proceeding under Section 138 of
the Negotiable Instruments Act, it will not be wise and
prudent on my part to form opinion about quashing of the
proceeding as contended on behalf of the opposite party. In
the case of “Indian Bank Association and Others V. Union of
India and Others” the Supreme Court has laid down the
procedure for speedy disposal of the cases under Section
138 of the Negotiable Instruments Act. In this case the
Apex Court had no opportunity to decide the issue whether
the evidence of the witness examined under Section 200 of
the Code of Criminal Procedure can be accepted after
accepting the evidence of the complaint. Accordingly, the
decision of “Indian Bank Association and Others V. Union of
India and Others” reported in JT 2014 (6) SC 592, cited
hereinabove is not relevant for deciding the issue whether
evidence of Aditya Dhanania can be recorded by learned
Magistrate as P. W. 2 after closure of evidence of Sumit
Seksaria as P. W. 1.
8. On perusal of the impugned order passed by learned
Magistrate I find that learned Magistrate refused to record
the evidence of Aditya Dhanania as P. W.2 mainly, on two
grounds: first, one Sumit Seksaria who has been
substituted in place of Aditya Dhanania has already given
evidence as P. W.1 and as such Aditya Dhanania cannot
give evidence again on behalf of the complainant as P. W.2,
and secondly, the lacunae in the evidence adduced on behalf of the complainant cannot be allowed to be filled up
by recording evidence of Aditya Dhanania who was
substituted as authorized representative of the complainant
company by Sumit Seksaria.
9. Since the complainant company is permitted to change
its authorized representative, I am of the view that there is
no bar under the law to record the evidence of Aditya
Dhanania as P. W. 2 though he represented the
complainant company at the initial stage of the proceedings
and was subsequently substituted by Sumit Seksaria. The
complainant company has the right to adduce further
evidence in support of the case made out by the
complainant after adducing evidence of the authorized
representative of the complainant company. That apart, the
defence will not be prejudiced for recording evidence of
Aditya Dhanania as P. W. 2, because the defence will get
ample opportunity to cross-examine the witness in order to
test the veracity of the statement given by the witness and
also to demolish the evidence given by the witness. The
logical inference of my above observation is that the
impugned order passed by learned Magistrate is liable to be
set aside.
10. Thus, the impugned order dated 07.04.2014 passed by
the Learned Metropolitan Magistrate, 15th Court, Calcutta in
Case No. C/2990 of 2001 under Section 138 of the Negotiable
Instruments Act is set aside. Learned Metropolitan
Magistrate is directed to accept the evidence of Aditya Dhanania as P. W. 2 and to give the defence opportunity to
cross-examine Aditya Dhanania.
With this observation the criminal revision is
disposed of.
The department is directed to send down a copy of
this judgement to the learned court below for favour of
information and necessary action.
Urgent photostat certified copy of this order, if
applied for, shall be given to the parties as expeditiously as
possible.
( R. K. Bag, J )
Print Page
its authorized representative, I am of the view that there is
no bar under the law to record the evidence of Aditya
Dhanania as P. W. 2 though he represented the
complainant company at the initial stage of the proceedings
and was subsequently substituted by Sumit Seksaria. The
complainant company has the right to adduce further
evidence in support of the case made out by the
complainant after adducing evidence of the authorized
representative of the complainant company. That apart, the
defence will not be prejudiced for recording evidence of
Aditya Dhanania as P. W. 2, because the defence will get
ample opportunity to cross-examine the witness in order to
test the veracity of the statement given by the witness and
also to demolish the evidence given by the witness. The
logical inference of my above observation is that the
impugned order passed by learned Magistrate is liable to be
set aside.
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
The Hon’ble Mr. Justice R.K. Bag
CRR 1417 of 2014
M/s Jilco Securities Limited
-Versus
Dinesh
Navinchand Desai
Judgment On: 21.07.2014
Citation;2015(3) crimes 622 Cal
This criminal revision is preferred by the petitioner
challenging the order dated 07.04.2014 passed by the Learned
Metropolitan Magistrate, 15th Court, Calcutta in Case No.
C/2990 of 2001 under Section 138 of the Negotiable
Instruments Act, 1881, by which learned Magistrate refused to
accept the evidence of one particular witness on behalf of the
complainant. 2. It appears from the materials on record that the
petitioner being complainant started criminal proceeding
against the opposite party under Section 138 of the Negotiable
Instruments Act, 1881 before the court of learned Magistrate
on 21.06.2001. This petition of complaint was filed by one Sri
Aditya Dhanania as the authorized representative of the
complainant company before the court of learned Magistrate
and he was examined under Section 200 of the Code of
Criminal Procedure for the purpose of issuing process against
the accused person. Subsequently on 30.04.2007 learned
Magistrate granted permission to one Sumit Seksaria to
represent the complainant company by stepping into the shoes
of Aditya Dhanania. Sumit Seksaria filed the affidavit as the
complainant before the court of learned Magistrate under
Section 145 of the Negotiable Instruments Act, 1881 and he
was cross –examined by the defence. Thereafter, one
application was filed on behalf of the complainant before the
court of learned Magistrate for acceptance of evidence of Aditya
Dhanania as P. W. 2 by way of affidavit under Section 145 of
the Negotiable Instruments Act and the same was refused by
learned Magistrate on the ground that P. W. 1 Sumit Seksaria
being substituted in place of Aditya Dhanania as the
authorized representative of the complainant company has
already adduced evidence and as such the evidence of Aditya
Dhanania cannot be accepted by the court.
3. With the above factual matrix, Mr. Ayan Bhattacharjee,
learned counsel appearing on behalf of the petitioner submits that there is no bar under the law to adduce any evidence in
support of the evidence of the complainant to establish the
case made out by the complainant in the petition of complaint.
Mr. Bhattacharjee contends that Aditya Dhanania was
examined as authorized representative of the complainant
company under Section 200 of the Code of Criminal Procedure,
but subsequently Sumit Seksaria stepped into the shoes of
Aditya Dhanania as authorized representative of the
complainant company and as such Sumit Seksaria gave
evidence as P. W. 1 by way of affidavit under Section 145 of the
Negotiable Instruments Act, but Aditya Dhanania cannot be
debarred from adducing evidence as P. W. 2 in support of the
case made out by complainant. Mr. Bhattacharjee has relied
on the decision of “SHANKAR FINANCE AND INVESTMENTS V.
STATE OF ANDHRA PRADESH AND OTHERS” reported in
(2008) 8 Supreme Court Cases 536 wherein it is laid down by
the Apex Court in Paragraph 16 as follows : -
“In regard to business transaction of companies,
partnerships or proprietary concerns, many a time the
authorised agent or attorney holder may be the only
person having personal knowledge of the particular
transaction; and if the authorised agent or attorney
holder has signed the complaint, it will be absurd to
say that he should not be examined under Section 200
of the Code, and only the secretary of the company or
the partner of the firm or the proprietor of a concern,
who did not have personal knowledge of the transaction, should be examined. Of course, where the
cheque is drawn in the name of the proprietor of a
proprietary concern, but an employee of such concern
(who is not an attorney holder) has knowledge of the
transaction, the payee as complainant and the
employee who has knowledge of the transaction, may
both have to be examined.”
By relying on the above decision Mr. Bhattacharjee submits
that Aditya Dhanania who was initially examined under
Section 200 of the Code of Criminal Procedure can very well
give evidence as P. W. 2 before the trial court in support of the
case made out by the complainant and the defence will not be
prejudiced thereby, as the defence will get ample opportunity
to cross-examine this witness.
4. Mr. Shekhar Kumar Basu, learned senior counsel
appearing on behalf of the opposite party contends that
learned Magistrate has acted in excess of jurisdiction conferred
on him by law by granting permission to Sumit Seksaria to
step into the shoes of Aditya Dhanania as the authorized
representative of the complainant company without any
document of authorization or power of attorney and as such
the evidence of Sumit Seksaria recorded by learned Magistrate
as P. W. 1 is in violation of the direction given by the Supreme
Court of India in “A. C. Narayanan V. State of Maharashtra &
Anr.” reported in JT 2013 (12) SC 524. In this case the
Supreme Court has laid down that filing of petition of
complaint under Section 138 of the Negotiable Instruments Act through power of attorney is perfectly legal and valid.
However, an explicit assertion as to the knowledge of the power
of attorney holder about the transaction in question must be
specified in the complaint.
5. The proposition of law laid down by the Apex Court in
the Case of “A. C. Narayanan V. State of Maharashtra and
Another” relates to issuance of process under Sections
138/142 of the Negotiable Instruments Act, 1881 by the holder
of power of attorney of the complainant company. The issue to
be decided in the present case does not relate to issuance of
initial process against the accused persons under Sections 138
read with 142 of the Negotiable Instruments Act, 1881. In the
present case the issue to be decided by this court is whether
learned Magistrate acted illegally and in excess of jurisdiction
conferred on him by law by refusing to accept the evidence of
Aditya Dhanania as P. W. 2 after recording evidence of Sumit
Seksaria as P. W. 1 as authorized representative of the
complainant company. Naturally, the facts of the present case
are clearly distinguishable from the facts of the case of “A. C.
Narayanan V. State of Maharashtra & Anr.” reported in JT
2013 (12) SC 524 and as such the ratio of the said decision will
not be applicable in the facts of the present case.
6. Mr. Basu, has also relied on the decision of “Indian
Bank Association and Others V. Union of India and Others”
reported in JT 2014 (6) SC 592, wherein the Supreme Court
of India has given the direction for expeditious disposal of the proceeding under Section 138 of the Negotiable
Instruments Act in paragraph 21, which as follows:
i) Magistrate/Judicial Magistrate (MM/JM), on
the day when the complaint under Section
138 of the Act is presented, shall scrutinize
the complaint and, if the complaint is
accompanied by the affidavit, and the affidavit
and the documents, if any, are found to be in
order, take cognizance and direct issuance of
summons.
ii) MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and
sent by post as well as by e-mail address got
from the complainant. Court, in appropriate
cases, may take the assistance of the police or
the nearby Court to serve notice to the
accused. For notice of appearance, a short
date be fixed. If the summons is received
back un-served, immediate follow up action
be taken.
iii) Court may indicate in the summon that if the
accused makes an application for
compounding of offences at the first hearing
of the cases and, if such an application is
made, Court may pass appropriate orders at
the earliest. iv) Court should direct the accused, when he
appears to furnish a bail bond, to ensure his
appearance during trial and ask him to take
notice under Section 251 Cr. P. C. to enable
him to enter his plea of defence and fix the
case for defence evidence, unless an
application is made by the accused under
Section 145 (2) for recalling a witness for
cross-examination.
v) The Court concerned must ensure that
examination-in-chief, cross-examination and
re-examination of the complainant must be
conducted within three months of assigning
the case. The Court has option of accepting
affidavits of the witnesses, instead of
examining them in Court. Witnesses to the
complaint and accused must be available for
cross-examination as and when there is
direction to this effect by the Court.”
7. Mr. Basu has relied on the above decision of the Apex
Court in support of the contention that the instant
proceeding under Section 138 of the Negotiable Instruments
Act pending before the Court of learned Magistrate for more
than 13 years is liable to be quashed by invoking inherent
power of this Court under Section 482 of the Code of
Criminal Procedure, 1973. Without making any scrutiny of
the orders passed by learned Magistrate and without formation of any opinion why this inordinate delay took
place in the disposal of this proceeding under Section 138 of
the Negotiable Instruments Act, it will not be wise and
prudent on my part to form opinion about quashing of the
proceeding as contended on behalf of the opposite party. In
the case of “Indian Bank Association and Others V. Union of
India and Others” the Supreme Court has laid down the
procedure for speedy disposal of the cases under Section
138 of the Negotiable Instruments Act. In this case the
Apex Court had no opportunity to decide the issue whether
the evidence of the witness examined under Section 200 of
the Code of Criminal Procedure can be accepted after
accepting the evidence of the complaint. Accordingly, the
decision of “Indian Bank Association and Others V. Union of
India and Others” reported in JT 2014 (6) SC 592, cited
hereinabove is not relevant for deciding the issue whether
evidence of Aditya Dhanania can be recorded by learned
Magistrate as P. W. 2 after closure of evidence of Sumit
Seksaria as P. W. 1.
8. On perusal of the impugned order passed by learned
Magistrate I find that learned Magistrate refused to record
the evidence of Aditya Dhanania as P. W.2 mainly, on two
grounds: first, one Sumit Seksaria who has been
substituted in place of Aditya Dhanania has already given
evidence as P. W.1 and as such Aditya Dhanania cannot
give evidence again on behalf of the complainant as P. W.2,
and secondly, the lacunae in the evidence adduced on behalf of the complainant cannot be allowed to be filled up
by recording evidence of Aditya Dhanania who was
substituted as authorized representative of the complainant
company by Sumit Seksaria.
9. Since the complainant company is permitted to change
its authorized representative, I am of the view that there is
no bar under the law to record the evidence of Aditya
Dhanania as P. W. 2 though he represented the
complainant company at the initial stage of the proceedings
and was subsequently substituted by Sumit Seksaria. The
complainant company has the right to adduce further
evidence in support of the case made out by the
complainant after adducing evidence of the authorized
representative of the complainant company. That apart, the
defence will not be prejudiced for recording evidence of
Aditya Dhanania as P. W. 2, because the defence will get
ample opportunity to cross-examine the witness in order to
test the veracity of the statement given by the witness and
also to demolish the evidence given by the witness. The
logical inference of my above observation is that the
impugned order passed by learned Magistrate is liable to be
set aside.
10. Thus, the impugned order dated 07.04.2014 passed by
the Learned Metropolitan Magistrate, 15th Court, Calcutta in
Case No. C/2990 of 2001 under Section 138 of the Negotiable
Instruments Act is set aside. Learned Metropolitan
Magistrate is directed to accept the evidence of Aditya Dhanania as P. W. 2 and to give the defence opportunity to
cross-examine Aditya Dhanania.
With this observation the criminal revision is
disposed of.
The department is directed to send down a copy of
this judgement to the learned court below for favour of
information and necessary action.
Urgent photostat certified copy of this order, if
applied for, shall be given to the parties as expeditiously as
possible.
( R. K. Bag, J )
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